Monday, 1 June 2015

New irritant in H-1B visas for IT companies

A
new ruling by the United States Citizenship and Immigration Services'
(USCIS) requires employers of H-1B visa holders to file a fresh Labour
Condition Application (LCA) if the employee is moved to a worksite in a
different city.

The USCIS has also issued a 90-day guideline to
employers to comply with the decision and if the amended petition is
not filed before August 19 for those who have already moved workers,
USCIS could revoke the H-1B worker status or deny request for extension.

An employer of the H-1B applicant is required to submit an LCA
to the US Department of Labour well in advance of the intended start
date of employment. The LCA, once certified, is to be included in
support of the H-1B application. The LCA needs to identify , among other
things, the intended places of employment.

Vikram Shroff, head
of the HR Law practice at law firm Nishith Desai Associates, said that
with the new ruling, the US government has clarified its stand that a
proposed change to the place of employment (a place which was not
mentioned in the original application documentation) will require the
employer to file a new LCA along with an amended H-1B petition."While
the exceptions may provide some relief, this ruling is likely to affect
employee mobility under the H-1B visa regime by reducing flexibility to
move employees to different locations or client projects in quick time,"
he said.

The exceptions include moves to other cities for up
to five days for things like conferences, and shortterm placements of up
to 30 days in a year.

Rakesh Prabhu, partner immigration
practice in ALMT Legal, said the order does not come as a
surprise."Change in the location of an employment, than what has been
indicated in the existing LCA, will certainly amount to 'material
change'. So an amended or a new H-1B petition (along with LCA) needs to
be submitted by the employer."